h-2a and h-2b labor certification programs and h-2b labor certification programs requirements,...

U.S. DEPARTMENT OF LABOR

Employment & Training Administration

H-2A and H-2B Labor Certification Programs

Requirements, Filing Tips & Best Practices

September 2016

For Government Training Use Only (September 2016) 1

Office of Foreign Labor Certification

Employment and Training Administration

United States Department of Labor

H-2A and H-2B Labor Certification Programs Presenters

Mr. Brian Pasternak Director of Programs


Mr. Shane Barbour Director, Chicago National Processing Center


Mr. Paul Gotte Certifying Officer, National Prevailing Wage Center



H-2A and H-2B Labor Certification Programs Webinar Briefing Outline

I. Overview of Department of Labor’s OFLC

II. Program Workload Trends & Regulatory Authority

III. Program Requirements, Filing Tips & Best Practices

Step 1: Obtain a Prevailing Wage

Step 2: Submit a Job Order to SWA

Step 3: Submit Application to DOL-OFLC

Step 4: DOL-OFLC Processing of Application

Step 5: Issuance of Final Determination

IV. Helpful Tips for Responding to H-2A Audit Examinations

V. Resources for Checking Processing Times


Understanding the H-2A and H-2B Programs


Briefing Section I

Overview of Department of Labor’s


Understanding the H-2A and H-2B Programs Overview of the Immigration Process

Obtain a labor certification from the Department of Labor

‒ Requires conducting a labor market test with the State

Workforce Agency where work will be performed


Obtain an approved petition from the DHS United States

Citizenship and Immigration Service for a specific number of

workers under H-2A or H-2B visa classification

After receiving USCIS petition approval, workers will apply with

one of the Department of State visa-issuing consulates abroad

for an H-2A or H-2B visa

After receiving the visa from a DOS consulate, workers arrive at a

port of entry where DHS’s Customs and Border Protection

officers verify eligibility for admission and length of stay

Step 1

Step 2

Step 3

Step 4

Department of Labor Office of Foreign Labor Certification - Overview

Through a delegation from the Secretary of Labor, OFLC

administers employment-based immigration programs

‒ “Employment-based” means that an employer and not the foreign

worker is filing an application

OFLC certifies to DHS-USCIS and DOS that:

1. There are not sufficient U.S. workers who are able, willing,

qualified, and available for the requested positions; and that the

2. Employment of the foreign worker(s) will not adversely affect the

wages and working conditions of similarly employed U.S. workers

6 For Government Training Use Only (September 2016)

Department of Labor Office of Foreign Labor Certification - Overview

OFLC receives and processes employer-filed applications

through National Processing Centers

OFLC programs are divided, by visa classification, into two

major types:

7

Immigrant

Atlanta Processing Center

Non-Immigrant

Chicago Processing Center

Permanent (PERM) Program

“Green Card”

H-1B, H-1B1, E-3 Skilled Occupations Visas

H-2A Temporary Agricultural Visa

H-2B Temporary Non-Agricultural Visa

For Government Training Use Only (September 2016)



Briefing Section II

Program Workload Trends &

Regulatory Authority

Department of Labor: H-2A Program Visa Program Features & Workload Trends


H-2A Program Features

8,373 applications processed

during FY 2016 *

96% certification rate

Peak season (Dec-Apr; July-Oct)

Pre/Post-filing labor market test

Select Economic Sectors

Sheep and Cattle Ranching

Christmas Trees/Logging

Wheat Harvesting

Tobacco, Fruits and Vegetables

Migratory Beekeeping

* Data available through September 3, 2016

Department of Labor: H-2A Program Current Regulatory Authority

10

20 CFR 655, Subpart B (effective March 15, 2010)

https://www.foreignlaborcert.doleta.gov/h-2a.cfm

Department published a Final Rule establishing special

procedures for the herding or production of livestock on

the range (effective November 16, 2015)

‒ Implementation website for all factsheets, small business

handbook, FAQs, and technical assistance materials at

https://www.foreignlaborcert.doleta.gov/h-2a_herders.cfm


Department of Labor: H-2B Program Visa Program Features & Workload Trends


H-2B Program Features

6,876 applications processed

during FY 2016 *

82% certification rate

Peak season (Dec-Feb; July-Aug)

Post-filing labor market test

Select Economic Sectors Landscaping/Reforestation

Resort Hotels/Restaurants

Construction

Amusement/Recreation

Horse Racing/Ski Resorts

Seafood (shrimp, crabs, oysters)

* Data available through September 3, 2016

Department of Labor: H-2B Program Current Regulatory Authority

12

Departments of Labor and Homeland Security jointly

published two regulatory actions with an immediate

effective date of April 29, 2015

Interim Final Rule (IFR): Temporary Non-Agricultural

Employment of H–2B Aliens in the United States

Final Rule: Wage Methodology for the Temporary Non-

Agricultural Employment in the H–2B Program

For more information, visit the OFLC website at www.foreignlaborcert.doleta.gov/2015_H-2B_IFR.cfm




Briefing Section III

Program Requirements, Filing Tips

& Best Practices

Department of Labor: H-2A and H-2B Programs Comparing Wage Setting Requirements


H-2A Agriculture H-2B Non-Agriculture

STEP 1: Obtain Prevailing Wage

Recommended Timeframe: Between 90

and 75 days before work start date

Recommended Timeframe: Between 150

and 135 days before work start date

Employer obtains minimum wage

information from OFLC website

Employer obtains prevailing wage from

OFLC NPWC (Form ETA – 9141)

Employer begins preparing a job order

on the Form ETA-790 and H-2A

application package

Employer begins preparing a job order

and the H-2B application package

Offer, advertise in recruitment, and pay

the highest of the following:

1. Adverse Effect Wage Rate (AEWR)

2. Prevailing Hourly Wage or Piece Rate

3. Collective Bargaining Wage

4. Federal or State Minimum Wage

Offer, advertise in recruitment, and pay

the highest of the following:

1. Prevailing Wage

(e.g., BLS-OES mean wage, acceptable

employer survey, CBA)

2. Federal, State or Local Minimum Wage

Hourly AEWRs

Based on U.S. Department of

Agriculture’s (USDA) Farm

Labor Survey

Annual weighted average

hourly wage for field and

livestock workers (combined)

Wage rates are statewide

based on USDA regions

For current AEWRs, visit the

OFLC Agricultural Online

Wage Library at:

https://www.foreignlaborcert.doleta.gov/adverse.cfm

H-2A Agriculture Program Wage Setting Requirements


Prevailing Wage

The wage (hourly, weekly) determined

by the SWA to be prevailing in the

local, regional, or statewide area

Prevailing Piece Rate

The amount that is paid to workers in

the crop or commodity per piece

(e.g., bin, pallet, bushel) determined

by the SWA to be prevailing in the

local, regional, or statewide area

For current prevailing wages, visit the OFLC Agricultural Online Wage

Library at: http://www.foreignlaborcert.doleta.gov/aowl.cfm




Questions about minimum wage requirements should be

directed to the SWA at the time of placing the job order

If the USDA hourly AEWR and/or the SWA prevailing wage

or piece rate is adjusted during a work contract period and is

now the highest applicable minimum wage in effect at the

time work is performed, the employer must pay that higher

wage

Important Reminders:

Annual updates to the USDA hourly AEWRs are published in the Federal

Register some time during the month of December

Remember that the monthly AEWR for occupations involved in the herding

or production of livestock will also be published in the Federal Register in

December and become effective January 1, 2016


H-2A Agriculture Program Sample Wage Offers on Form ETA-790

Make sure wage offer(s) match the Form ETA-9142A in each

of the crops and commodities


H-2B Non-Agriculture Program Wage Setting Requirements

General Filing Tips

DO NOT WAIT! Please file your request for a prevailing wage determination as soon as practically possible

As of July 1, 2016, the validity period for prevailing wage determinations will be issued to June 30, 2017

Under the 2016 DOL Appropriations Act, the term “private survey” include (1) government surveys not conducted or issued by DOL, and (2) non-government surveys conducted by private individuals or organizations who are bona fide third parties

Employer-provided surveys must provide the single arithmetic mean of wages paid to all workers in the occupational classification within the area of intended employment, regardless of skill level, experience, education, and length of employment

‒ Reminder: Where the survey provides only a median, not an arithmetic mean, a median wage is acceptable



Job Descriptions: Be Thorough, Yet Concise

DO be concise, but adequately thorough to avoid RFI and

expedite processing

DON’T include information unrelated to job duties and

unnecessary to determine the skill, knowledge, and

experience requirements for the job

‒ Do not include “worker notice” statements that detail the workweek, pay

schedule, age requirements, or other details unrelated to the duties and

qualifications required to perform them

‒ Do not include statements about lodging

‒ Do not restate the legal requirements outlined in the regulation

‒ Just be cause something is needed for advertising does not mean it has

to be in the PWD job duties


Job Descriptions: Be Thorough, Yet Concise

DO include relevant facts about the nature and extent of each duty

‒ Descriptions of the size/scope of trenching work must be sufficient to permit

a determination of whether the work is hazardous

‒ Descriptions of food preparation/handling duties must be sufficient to permit

a determination of the type of food and whether the worker cooks and/or

serves the food

• Cook hamburgers, French fries and chicken patties using a repetitive process

• Cook menu items according to recipe

• Assemble sandwiches and serve to customer at counter

• Serve premade foods/beverages to customers at counter and accept payment

‒ What and where loading/unloading of products or commodities is occurring

• Unload bags of crawfish from truck

• Unload finished table legs from lathe

• Load boxes of shingles onto pallet then onto the warehouse shelves using a

forklift



Survey Samples: Survey the Necessary Area

DO survey all, or a randomized sample of all, employers of

workers within the entire Area of Intended Employment (AIE)

‒ AIE = Area within normal commuting distance of the place of

employment. Includes any place within the Metropolitan

Statistical Area (MSA) encompassing the worksite. Locations

outside the MSA may be included if they and the worksite are

near the MSA border. 20 CFR 655.3

DON’T expand the surveyed area beyond the AIE without

explaining necessity (must be in survey documents)

‒ Area may be expanded if insufficient # of employers (<3)

‒ OR insufficient # workers (<30) in the occupation, are available

in the AIE



Survey Samples: Survey the Necessary Area

DO describe the extent of expansion and explain that the

expansion was (must be in survey documents):

1. No greater than necessary to meet the 30 worker/3 employer

sample size requirement

2. Limited to areas contiguous with (immediately

surrounding) the AIE (“Incremental, tailored expansion”)



Survey Samples: Describe the Wage Sample

DO include all required types of pay in the wage sample

‒ Required Types = Base rate, piece rate, production bonus, tips,

incentive pay, and several others listed in the ETA-9165

instructions

‒ Reported as an hourly rate

DO describe the method used to convert piece

rate/bonus pay to hourly survey wage



Survey Samples: Describe the Wage Sample

An easy way to meet the wage sample requirements is to use

the Total Compensation Method

All types of pay (e.g., base, piece, tips) for all workers divided by

hours worked by all workers to earn that compensation.


Employer Workers Compensation Hours

A 5 $8,272.08 802

B 7 $11,189.18 918

C 23 $42,002.76 3678

D 19 $38,890.72 3344

E 4 $8,042.66 794

Total $108,397.40 9536

Hourly Rate $11.37 per hour


Form ETA-9165: Avoid Common Errors

DON’T confuse the universe size with the sample size

‒ The universe is the number of firms employing workers

and may be an estimate.

‒ The sample size is the number of employers asked to

provide information and is a subset of the universe


Example: The surveyor has determined there are about 600 firms who employ

similarly employed workers and surveys were sent to 75 of them. Of the 75 who

received surveys, 26 gave usable results.

• Universe (E.1) = 600

• Sample Size (E.4)= 75

• Data from Employers (E.9) = 26


Form ETA-9165: Avoid Common Errors

DO ensure you have listed the correct AIE surveyed in

Field D.3, Form ETA-9165

• List the counties within normal commuting distance from

the work address

• It is acceptable to list the MSA where the worksite(s) is

located in a MSA since any place within the MSA is

deemed by the regulation to be within normal commuting

distance of the place of intended employment



Department of Labor: H-2A and H-2B Programs Comparing SWA Job Order Filing Requirements



STEP 2: Submit Job Order to State Workforce Agency

Regulatory Timeframe: Between 75 and

60 days before work start date

Regulatory Timeframe: Between 90 and 75

days before work start date

Submits Form ETA-790 and informs SWA

of intent to file a future application for H-

2A workers

Submits job order and informs SWA that a

concurrent application for H-2B workers has

been filed

Job order must meet the content

requirements at 20 CFR 653 Subpart F

and 20 CFR 655.122

SWA reviews job order, notifies employer

of deficiencies within 7 calendar days OR

if acceptable, begins in-state recruitment

Request that State Agency inspect

housing for farmworkers (if applicable)

Job order must meet the content

requirements at 20 CFR 655.18

and any state-specific requirements

SWA reviews job order and notifies the

OFLC Chicago NPC of any deficiencies

within 6 business days

MUST have a valid prevailing wage

determination to prepare wage offer(s)

Employer’s job opportunity must . . .

− Offer to U.S. workers no less than the same benefits, wages,

and working conditions that the employer is offering, intends to

offer, or will provide to H-2A workers

− Not impose on U.S. workers any restrictions or obligations that

will not be imposed on H-2A workers

− Offer job qualifications and requirements that are bona fide and

consistent with the normal and accepted qualifications required

by employers that do not use H-2A workers in the same or

comparable occupations and crops

− CO or SWA may require employer to submit documentation

substantiating the appropriateness of any qualification contained

in the ETA Form 790

H-2A Agricultural Program Preparing the Form ETA-790 – General Requirements


Make sure the job order contains the minimum content

requirements under 20 CFR 655.122(d)

H-2A Agricultural Program Tips for Preparing the Form ETA-790

Minimum Benefits, Wages, and Working Conditions Regulatory Citation(s)

Provision of Housing 655.122(d)

Provision of Workers’ Compensation 655.122(e)

Provision of Tools, Supplies, and Equipment 655.122(f)

Provision of Meals or Cooking Facilities 655.122(g)

Provision of Transportation and Daily Subsistence 655.122(h)

Three-Fourths Guarantee 655.122(i)

Hours/Earnings Records, Rates and Frequency of Pay 655.122(j) through (m)

Abandonment or Termination for Cause 655.122(n)

Contract Impossibility 655.122(o)

Required Deductions from Worker’s Pay 655.122(p)

Work Contract or ETA Form 790 and attachments 655.122(q)


Make sure the expected start and end dates of work and the

number of workers requested match the Form ETA-9142A

Identify all housing units for workers including

‒ Clear and legible directions to each housing location

‒ Description of the housing and type (e.g., rental/public

accommodation, labor camp, 2-story wood frame barracks)

‒ Capacity of the housing unit, if available

‒ For rental housing or other public accommodations, employer

must provide a signed and dated assurance from the housing

operator that identifies the applicable housing standards

(e.g., local, state, federal) and that the housing unit(s) meet

those standards



Make sure the job description/requirements match the Form

ETA-9142A and are normal and accepted by non-H-2A

employers in the same or comparable occupations and crops



33

IF the employer identifies certain job requirements, make

sure that the appropriate boxes in Fields 16a and 16b are

completed and match

Best Practice: Good

example of how the

employer matched up

the job description

narrative with the

responses to some of

the fields in 16b, Form

ETA-790



34

Productivity standards

‒ Cannot be tied to an hourly rate of pay

‒ Be careful of language in job orders that appear to create production

standards that are vague and not clearly understood

(e.g. perform work in a timely and proficient manner)

‒ Regulation requires that production standards must be no more than

those normally required (at the time of the first H-2A application) by

other employers for the activity in the area of intended employment

‒ Generally, production standards for employers who use the H-2A

program cannot be increased in subsequent filing years

‒ More information on the use of production standards can be found in

Round 9 FAQs posted on October 2015 at

https://www.foreignlaborcert.doleta.gov/pdf/H-2A_FAQ_Round9.pdf



If you need more space to explain the terms and conditions of

employment, please use an attachment that is clearly labeled

and reference the ETA Form 790 item number

Best practice example:



Disclose the current amounts for transportation and daily

subsistence payments to workers located at: http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm

Proofread documents prior to submission for errors and

inconsistencies

Ensure all required information on the ETA Forms 790 are

completed prior to submission

Ensure the form is signed and dated by the employer; NOT

the employer’s authorized agent or attorney

‒ Electronic signature of the employer on the Form ETA-790 is

acceptable



A completed job order must be submitted to the SWA at

the same time the employer submits the H-2B

application

Employer must inform the SWA that the job order is

being placed in connection with a concurrent application

for H-2B workers

If the anticipated worksites are located in more than one

State within the area of intended employment, the

employer may submit the job order to any one of the

SWAs having jurisdiction over the those worksites

H-2B Non-Agricultural Program Preparing the Job Order – General Requirements


Employer’s job opportunity must . . .

− Offer to U.S. workers no less than the same benefits, wages,

and working conditions that the employer is offering, intends to

offer, or will provide to H-2B workers

− Not impose on U.S. workers any restrictions or obligations that

will not be imposed on H-2B workers

− Offer job qualifications and requirements that are bona fide and

consistent with the normal and accepted qualifications and

requirements imposed by employers that do not use H-2B

workers in the same occupations and area of employment

− CO may require employers to submit documentation

substantiating the appropriateness of any job qualification

and/or requirement

H-2B Non-Agricultural Program Preparing the Job Order – General Requirements


Many SWAs maintain job order systems that permit employers to

place job orders using “self-service”, while others require “staff-

assistance” and use a standard job order form

Regardless of the method, the employer must apprise the SWA or

otherwise provide notification that the job order is being placed in

connection with an H-2B application

If the SWA form does not have a dedicated field to indicate “H-

2B”, then provide notification using an “open text field” or when

transmitting (e.g., email) the job order

H-2B Non-Agricultural Program Tips for Preparing the Job Order

Best Practice Tip: Contact the SWA early in the process to understand how to

submit a job order and/or obtain a copy of the SWA’s standard job order form.

Make sure the SWA has the capability to make modifications on your behalf, in the

event certain job order content is not regulatory compliant.


40

Many SWA job order systems/forms do not have

dedicated fields for the required content (e.g., start/end dates of work, can only enter up to 25 openings)

‒ Use a free text field (e.g., job description) or contact the

SWA for assistance on how to complete the job order form

Be aware of any character size limitations that may exist

in some SWA job order systems/forms, prohibiting

inclusion of the necessary assurances

‒ Contact the SWA immediately and inquire as to what

minimum language can be entered




Make sure the job order contains the minimum content

requirements under 20 CFR 655.18

Job Order Content Requirements Regulatory Citation

State the employer’s name and contact information 655.18 (b)(1)

Indicate job is temporary, full-time, and number of openings 655.18 (b)(2)

Description of job duties, requirements, and qualifications 655.18 (b)(3)

Geographic area of employment 655.18 (b)(4)

Wage offer or range of applicable wage offers 655.18 (b)(5)

Availability of overtime and wage offer (if applicable) 655.18 (b)(6)

Provision of on-the-job training (if applicable) 655.18 (b)(7)

State a single workweek will be used in computing wage due 655.18 (b)(8)

Specify the frequency of pay 655.18 (b)(9)


Job Order Content Requirements Regulatory Citation

Provision of board, lodging, or other facilities (if applicable) 655.18 (b)(10)

State all deductions from the worker’s paycheck 655.18 (b)(11)

Inbound transportation/daily subsistence (if applicable, lodging) 655.18 (b)(12)

Outbound transportation/daily subsistence (if applicable, lodging) 655.18 (b)(13)

Provision of daily transportation (if applicable) 655.18 (b)(14)

State reimbursement of visa, border, and related fees 655.18 (b)(15)

Provision of any tools, supplies, and equipment at no cost 655.18 (b)(16)

Three-fourths guarantee (not required due to 2016 Omnibus Act) 655.18 (b)(17)

Instruct applicants to contact nearest office of the SWA 655.18 (b)(18)

A job order checklist with sample language is available at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Job_Order_Checklist.pdf



43

Employer’s name 655.18 (b)(1)

Indication position is

temporary, full-time, number

of openings, and expected

start and dates of work 655.18 (b)(2)

Geographic location of

employment 655.18 (b)(4)

Detailed job description,

duties and requirements 655.18 (b)(3)

Wage offers, including

overtime, and full-time hours 655.18 (b)(5) and (b)(6)

H-2B Non-Agricultural Program Best Practice Example Job Order


44

Inbound transportation 655.18 (b)(12)

Outbound transportation 655.18 (b)(13)

Disclosure of daily

subsistence amount 655.18 (b)(12) and (b)(13)

Provision of tools,

equipment, and supplies 655.18 (b)(16)

3/4th Guarantee (not required due to 2016 Omnibus)

655.18 (b)(17)



45

Single workweek guarantee

and frequency of pay 655.18 (b)(8) and (b)(9)

Statement of deductions

from worker’s pay 655.18 (b)(11)

Reimbursement of border,

visa, and related fees 655.18 (b)(15)

Provision of board, lodging,

or other facilities 655.18 (b)(10)

Employer contact

information 655.18 (b)(1)

Instructions on how to apply 655.18 (b)(18)



Department of Labor: H-2A and H-2B Programs Comparing Application Filing Requirements



STEP 3: Submit Application to DOL-OFLC

Statutory Timeframe: No later than 45 days

before work start date

Regulatory Timeframe: Between 90 and 75

days before work start date

U.S. mail or electronic iCERT System

FY 2016 = 79% employers filed electronically

U.S. mail or electronic iCERT System

FY 2016 = 93% employers filed electronically

Basic H-2A application Basic H-2B application

Form ETA-9142A and Appendix A

Form ETA-790 (job order)

Workers’ compensation coverage (if available)

Housing inspection report (if available)

Farm labor contractor license (if applicable)

Additional documentation for H-2A labor

contractors (e.g., surety bond, executed work

contracts with local growers)

Form ETA-9142B and Appendix B

Copy of job order placed with State Agency

Form ETA-9141 issued by OFLC-NPWC

Agreements with agents/foreign recruiters

Lists of names/locations of foreign recruiters

Additional documentation for job contractors and

employers requiring farm labor contractor license

(e.g., reforestation employers)

H-2A and H-2B Programs General Filing Tips & Issues

47

Ensure all required fields on the ETA-9142A/B are

completed prior to submission

Review your application package carefully and ensure all

required documents are included or uploaded electronically

‒ Use a “checklist cover sheet” that identifies all items submitted

for processing with your application package

‒ For more efficient processing, upload separate electronic

documents for each document type (e.g., job order, agent

agreement) rather than one large file

Provide legible copies of supporting documentation - this is

a particular problem with contractor documents (e.g., FLC registrations, H-2A surety bonds)


48

Try to file your job order and application as early as the

regulatory timeframes permit

In H-2B, employer must have a valid prevailing wage

determination issued by the NPWC; otherwise application

will be rejected

Make sure the dates of need, number of workers being

requested for certification, and worksite locations match

between the job order and Form ETA-9142A/B

If using a template to submit applications and the CO issues

a Notice of Deficiency (NOD) impacting your template,

employers must amend the template to avoid a continuation

of the same NOD for each application



49

Ensure the size of workforce and period of employment

(i.e., start and end dates of work) requested for H-2A or H-2B

certification represents a bona fide business need

Requesting a start date of work based on “expected

government delays” is not acceptable

Changes to the period of employment (start or end dates),

especially more than 2 weeks, must be accompanied with an

explanation and the CO may request supporting documents

In H-2B, job contractors need to demonstrate through

documentation its OWN temporary need, not just the need of

its employer-client, and can only file based on a seasonal

need or a one-time occurrence



Employer will submit the following documents:

‒ ETA 9142A

‒ Appendix A - signed and dated copy of original

‒ Copy of Form ETA-790/all attachments submitted to the SWA

‒ Itinerary of worksites (if applicable)

‒ Workers compensation coverage

‒ SWA housing inspection report(s) or other documentation

demonstrating rental/public accommodation housing meets

standards and sufficient to house all workers

‒ Agent agreement/documentation demonstrating authority to

represent the employer and MSPA registration (if applicable)

H-2A Agricultural Program Application Filing Checklist (non-emergency situation)


Additional documentation for H-2A labor contractors:

‒ Name and location of each fixed-site employer, expected start and

end dates of work, and a description of the crops and activities

− Copy of fully-executed work contracts with each fixed-site employer

− Copy of MSPA FLC Certificate of Registration, where required,

identifying the specific FLC activities

− Proof of ability to discharge financial obligations by submitting an

original surety bond document

− Where the fixed-site employer will provide housing or transportation

to workers, proof that . . .

• Housing complies with applicable standards and has been certified by

the SWA

• Transportation complies with applicable Federal, State, or local laws

and regulations

H-2A Agricultural Program Application Filing Checklist (non-emergency situation)


52

H-2A Labor Contractors must . . .

‒ Organize housing and transportation for worker crews well in

advance of filing the job order

‒ Provide documentation that rental or other public accommodation

housing complies with the applicable local, State, or Federal

housing standards

‒ Prepare for the time it will take to obtain and/or renew Farm Labor

Contractor (FLC) documents with Wage and Hour

‒ All worksites listed on the ETA Form 9142 and ETA Form 790 must

be within the same area of intended employment

‒ Applications and job orders containing worksites covering multiple

areas of intended employment will not be accepted

H-2A Agricultural Program Filing Tips for H-2A Labor Contractors


Employer will submit the following documents:

‒ ETA 9142B

‒ Appendix B - signed and dated copy of original

‒ Copy of the job order concurrently submitted to the SWA

‒ Copy of Form ETA-9141 Prevailing Wage Determination

‒ Agent agreement/documentation demonstrating authority to

represent the employer (if applicable)

‒ Copies of all contracts/agreements with any agent and/or recruiter

engaged in international recruitment of H-2B workers

‒ If not using a foreign labor recruiter, employer must still provide a

statement indicating that at the time of filing

‒ Contact information of all persons and entities hired by or working

for the recruiter or agent, including any “sub” agents or employees

of such persons and entities (if applicable)

H-2B Non-Agricultural Program Application Filing Checklist (non-emergency situation)


Required documents (continued)

‒ Occupations involving special procedures must submit other

required documents (e.g., itineraries)

‒ Copy of MSPA registration for the employer or agent (if applicable)

Additional documents for job contractors

‒ A completed ETA 9142B Sections C & D identifying the one

employer-client associated with the job opportunity

‒ Appendix B - signed and dated copy of original for employer-client

‒ A separate statement of temporary need for the employer-client on

the ETA 9142B Section B.9

‒ Copy of an executed contract between the job contractor and

employer-client

H-2B Non-Agricultural Program Application Filing Checklist (non-emergency situation)

Important Reminder: Employers should provide certified translations of any

contracts or agreements which are not in English to assure timely processing


Department of Labor: H-2A and H-2B Programs Comparing Application Processing Procedures



Statutory Timeframe: Within 7 days Regulatory Timeframe: Within 7 business days

Reviews for completeness, obvious errors

or inaccuracies, and compliance with

program requirements

Issues Notice of Deficiency or Acceptance

Reviews for completeness, obvious errors

or inaccuracies, and compliance with

program requirements

Issues Notice of Deficiency or Acceptance

If deficiency is issued, employer has

5 business days to respond (regulatory)

If deficiency is issued, employer has

10 business days to respond (regulatory)

STEP 4: DOL-OFLC Processing of Application

Employer must submit recruitment report

when all positive recruitment is completed

If application is accepted, employer

positively recruits for U.S. workers

If application is accepted, employer

positively recruits for U.S. workers

State Agency submits housing inspection

report (if applicable)

Employer submits recruitment report and

other required documents not provided at

the time of filing

H-2A and H-2B Programs Important Reminders about DOL-OFLC Processing


Strongly encourage electronic filing of applications

‒ FY 2016, approximately 85% filed electronically

OFLC consistently uses email, NOT “snail-mail”, to

communicate with employers and their representative

Employers can electronically upload required documentation

at the time of filing and at any point during processing in

response to a Notice of Deficiency or Acceptance

All final labor certification decisions are made available to

the public through the iCERT System’s Labor Certification

Registry at http://icert.doleta.gov

H-2A and H-2B Programs iCERT System: Document Upload Enhancement

On August 26, the iCERT System was enhanced to permit

the submission of electronic documentation at the time of

filing and while the H-2A or H-2B application is pending

review

Enhancement is intended to minimize delays associated with

connecting employer documentation to a pending H-2A or H-

2B application and to provide more flexibility in submitting

documentation in response to Notices of Deficiency or

Acceptance

To obtain information on how to use this new enhancement,

please download the iCERT Quick Start Guide at: https://www.foreignlaborcert.doleta.gov/pdf/H-2A_H-

2B_ElectronicDocumentUpload_iCERT.pdf


H-2A and H-2B Programs iCERT System: Helpful Tips for Using Document Upload

58

Best Practice Tips:

Avoid uploading one large file for multiple documents

If multiple documents are uploaded for a single document

type, use a sequence number to order them

Filenames should clearly describes the document and

include a case number or employer name and a date in

the filename (e.g., EmployerName_RR_09102016.PDF)

DO NOT upload electronic documents and then send a

duplicate copy via email, fax, or US mail


Places 2 print advertisements in local area

Contacts employees from prior year

Conducts out-of-state recruitment

(not more than 3 states)

Additional recruitment can be ordered at

the discretion of the Certifying Officer

Positive recruitment must occur no later

than 3 days before the start date of work

Recruitment report can be submitted by

the date specified in the Notice of

Acceptance

Department of Labor: H-2A and H-2B Programs Comparing Positive Recruitment Requirements



Places 2 print advertisements in local area

Contacts employees from prior year

Contacts bargaining representative or post

notice of filing for 15 consecutive business

days

Additional recruitment can be ordered at the

discretion of the Certifying Officer

(e.g., unions, CBOs, areas of substantial

unemployment)

Recruitment report can be submitted once

all advertising steps are completed

STEP 4: DOL-OFLC Processing of Application (continued)

Employer submits a signed and dated

copy of Appendix A to USCIS

(i.e., “wet signature” no longer required)

Department of Labor: H-2A and H-2B Programs Comparing Issuance of Final Determinations



STEP 5: Issuance of Final Determination

Grant labor certification as long as all

program requirements are met

Grant or deny labor certification after

receiving and reviewing the report of

employer’s recruitment efforts

Statutory Timeframe: 30 days before start

date of work

Timeframe: None required by statute or

regulation

Certified Form ETA-9142A issued on

“blue security paper” Certified Form ETA-9142B issued on

“blue security paper”

Employer must consider U.S. workers

until 50 percent of the certified period of

work has elapsed

Employer must consider U.S. workers

until 21 days before start date of work

Employer submits a signed and dated

copy of Appendix B to USCIS


61

H-2B Amendments to start date of need: Regulation

allows a “minor” (up to 14 days) amendment to the start date

of need. Remember the H-2B cap!

‒ Can only be requested prior to the issuance of a final

determination and must receive written approval from the CO

Post-certification amendments of any kind are prohibited

H-2A/H-2B recruitment reports: Prepare them correctly

‒ Employer must “prepare” the recruitment report

‒ Must not be on attorney/agent letterhead and not signed by

attorney/agent

‒ Ensure all required content for recruitment reports are

included, particularly the source(s) of recruitment and

disposition of each U.S. worker who applied


62

Clearly identifies each

positive recruitment step

and the date(s) that each

was conducted

Provides aggregate

summary of

recruitment results



63

Supporting details

of the recruitment

effort clearly

shows each U.S.

worker who

applied and

disposition

Notice disposition

of U.S. applicant

still pending, so a

partial certification

would occur in this

instance



64

Employer or authorized attorney/agent will receive a certified

Form ETA-9142A/B printed on “blue security paper”

Please verify that Section K and the “footer” on each page of

the Form ETA-9142A/B is complete and accurate



H-2A Agriculture Program REMINDER: Issuance of Final Determination

65

In the H-2A program, DOL issues a final determination 30 days

before the start date of work as long as all program requirements

are met

Common reason(s) for delaying the H-2A final determination is the

employer or authorized representative not providing . . .

‒ Proof of valid workers’ compensation coverage

‒ Housing documentation for farmworkers

‒ Valid farm labor contractor licenses

‒ Valid surety bond for labor contractors

‒ Recruitment report

DOL provides employers with additional time to submit required

documents to obtain certification, rather than issue a denial forcing

employers to choose between filing an appeal or new application


66

Post-Certification Recruitment Obligations

Employers must continue to cooperate with the SWA in

recruiting for the job opportunity and provide employment to any

qualified U.S. worker who applies for the job opportunity

‒ H-2A until 50 percent of the certified period of work has elapsed

‒ H-2B until 21 days before start date of work

Employer must continue to update the initial recruitment report

submitted to the CO for certification throughout the entire

recruitment period

Employer must sign and date the final written recruitment report

and be prepared to submit it when requested by the CO in the

event of an audit examination or other request from the

Department



67

Pay the required H-2A certification fees in full and timely (within 30 days after the certified is issued)

Maintain all documents supporting the certification for a

period of 3 years

Report the termination or separation of workers in a timely

manner (no later than 2 working days)

Ensure the workforce and period of employment requested

for certification represent bona fide business need (e.g., claiming expected government delays is not an acceptable

justification)





Briefing Section IV

Helpful Tips for Responding to

H-2A Audit Examinations

Department of Labor: H-2A Program Helpful Tips – Responding to Audit Examination

Conducted on certified H-2A applications only

Applications selected within the sole discretion of the

Certifying Officer (CO)

CO will issue a Notice of Audit Examination Letter

containing the following:

‒ Documentation retained by the employer or other

information regarding the certified application

‒ A date no more than 30 days in which the CO must receive

the documentation

‒ Notice that failure to comply with the audit process may

result in revocation of the certified application or program

debarment from future filings



70

Read the Notice of Audit Examination (NOAE) letter carefully

and respond to all items requested

‒ NOAE letters change periodically to request documentation

where a Request for Supplemental Information was previously

necessary

Where employer did not use the certification, responsive

documentation is still required such as . . .

‒ Proof of conducting positive recruitment

‒ Updated recruitment report

‒ Explanation of how full-time work was accomplished without

use of H-2A workers



71

Only one extension (up to 14 days) will be granted per audit

examination, not per letter issued during the audit process

‒ An additional extension may be granted in extenuating

circumstances which should be detailed in the extension

request

Submit what you have now, let the Chicago NPC know what

is missing and why, and send the remaining documents as

soon as practically possible

Responses that are mere “statements” from the employer

affirming program compliance must be supported by

objective documentation or evidence

The reason(s) for “late start” and/or “early end” to work must

be explained and documented



72

Submit translations of documentation in English, particularly

work contracts outside of the certified job order/application

Ensure the newspaper advertisements contain all minimum

content required by 20 CFR 655.152

Make sure all of the required information for newspaper

advertisements is clearly visible on copies submitted.

‒ Dates of publication and name of newspaper must be clearly

visible and legible

Provide evidence that the newspaper advertisements were

actually published

‒ Submission of an unpaid invoice showing merely the “cost” for

the newspaper advertisement is not acceptable




Briefing Section V

Resources for Checking Current

Processing Times

Department of Labor: H-2B Program Processing Times for Prevailing Wage Determinations


Go To http://icert.dol.gov

Click on “Processing Times”

Department of Labor: H-2B Program Processing Times for Labor Certification Applications




Department of Labor: H-2A Program Processing Times for Labor Certification Applications




Department of Labor: H-2A and H-2B Programs How to Contact OFLC for Help


General program and processing questions

Email: [email protected]

Fax: (312) 353-6757

Mail: U.S. Department of Labor


Chicago National Processing Center

11 West Quincy Court, IL 60604-2105

Check the OFLC website on regular basis for updates,

FAQs, webinar announcements, and updated forms

http://www.foreignlaborcert.doleta.gov

Department of Labor: H-2A and H-2B Programs Helpful Resources

Visit the OFLC website and “Subscribe” for e-mail updates http://www.foreignlaborcert.doleta.gov


Disclaimer

This presentation is intended for training use only and does not carry the force of legal opinion.

The Department of Labor is providing this information as a

public service. This information and any related materials are

presented to give the public access to information on the

Department of Labor programs. You should be aware that,

while we try to keep the information timely and accurate, there

will often be a delay between official publications of the

materials and the modification of these pages. Therefore, we

make no express or implied guarantees. The Federal Register

and the Code of Federal Regulations remain the official source

for regulatory information published by the Department of

Labor. We will make every effort to keep this information

current and to correct errors brought to our attention.


h-2a and h-2b labor certification programs and h-2b labor certification programs requirements,...

Documents